IN THE CASE OF:	  

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090006673 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 15 October 1997, from his Official Military Personnel File (OMPF).

2.  The applicant states he received an Article 15 for violating a lawful order to have no contact with his estranged wife.  When a change of command occurred, the new commander rescinded the Article 15 because he (the applicant) shared joint custody of his child, thus the order should never have been issued.  He adds he never cared about this before, but he now wants to rejoin the Army.

3.  The applicant provides no additional information.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2.  The applicant served in the Regular Army as a legal specialist from 4 June 1993 through 16 January 1999.  From April 1996, he was assigned to Headquarters and Headquarters Company, V Corps, Heidelberg, Germany.  He was promoted to the rank of sergeant (SGT/E-5) on 1 August 1996.

3.  The applicant received an order from his company commander “to have no physical contact with [his] wife, except when the physical contact had received prior approval from [his] direct supervisor.”  On 11 August, 16 September, 
22 September, and on 29 September 1997, he disobeyed that order.

4.  The applicant also disobeyed an order on 29 September 1997 to “not go into [wife’s] room or hold any conversation with her unless SGT M.P. was present.”

5.  As a result of the Article 15, the applicant was reduced from SGT to specialist (SPC/E-4), restricted for 2 days, and verbally reprimanded.  He appealed and his appeal was denied.  The DA Form 2627 was filed in the restricted section of the applicant’s OMPF.

6.  Army Regulation 600-37 sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files.  Chapter 7 contains guidance on appeals for removal of unfavorable information from the OMPF.  It states, in pertinent part, that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the applicant to provide evidence of a clear and convincing nature that the document is untrue or unjust, thereby warranting its alteration or removal from the OMPF.  It also provides provisions that allow the transfer of a DA Form 2627 from the performance portion to the restricted portion of the OMPF.  However, there are no provisions for removing a DA Form 2627 from the OMPF.  It further stipulates that appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.  Where the OMPF is electronic, the restricted section and the performance section mean the restricted section and the performance section of Personnel Electronic Management System (PERMS).

7.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice.  Paragraph 3-37b states, in pertinent part, that for Soldiers in the ranks of SGT and above, the original record of NJP will be sent to the appropriate custodian for filing in the OMPF.  The decision to file the original DA Form 2627 in the Performance Fiche or Restricted Fiche of the OMPF will be determined by the imposing commander at the time punishment is imposed.  All Article 15 actions, including notification, acknowledgement, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, will be recorded on DA Form 2627.  The original DA Form 2627 will include as allied documents all written statements and other documentary evidence considered by the imposing commander or the next superior authority acting on an appeal.  For all Soldiers in the rank/grade of SGT/E-5 and above, the original DA Form 2627 will be sent to the appropriate records custodian listed for filing in the OMPF.

8.  Paragraph 3-43 of Army Regulation 27-10 contains guidance on the transfer or removal of records of nonjudicial punishment (DA Form 2627) from the OMPF.  It states, in pertinent part, applications for removal of an Article 15 from the OMPF based on an error or injustice will be made to the ABCMR.  It further indicates that there must be clear and compelling evidence to support the removal of a properly-completed, facially-valid DA Form 2627 from a Soldier’s record by the ABCMR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the subject DA Form 2627 should be removed from his OMPF.  He states the Article 15 was rescinded by his new commander.

2.  The Article 15 proceedings were conducted in accordance with law and governing regulations.  The punishments imposed were within the prescribed limits and were proportionate to the offenses committed.  There is no evidence the Article 15 was rescinded by anyone.

3.  The applicant was a noncommissioned officer when he was administered the Article 15.  Regulations provide the DA Form 2627 be filed in the OMPF.

4.  The applicant has not established that he had joint custody of his child.  Even if he had been given joint custody, he could have exercised his parental responsibilities without disobeying his commander’s order simply by obtaining “prior approval from [his] direct supervisor” before having contact with his estranged wife in order to visit his child.

5.  The applicant is not entitled to relief as a matter of law or equity.  The Article 15 was proper as a matter of law and fact.  The applicant offers no compelling equitable reasons for its removal from his OMPF.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090006673



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ABCMR Record of Proceedings (cont)                                         AR20090006673



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